Nyoni v Beadle in her Capacity as Trustee of the Bankrupt Estate of Emson Clever Nyoni

1. Pursuant to rule 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth), the court dismisses: (a) the appeal; (b) the application dated 12 July 2019 (save to the extent of the orders made on 18 July 2019); and (c) the interlocutory application dated 30 October 2019.
2. The respondent must serve a copy of these orders on the appellants within seven days of the date of this order.
3. The appellants must pay the respondent's costs of the appeal, including all reserved costs, to be assessed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

JACKSON J: 1 Before the court today is an appeal from a decision of the Federal Circuit Court of Australia and two interlocutory applications made in that appeal. The appellants, and the applicants in both interlocutory applications, are Emson Nyoni, who is a bankrupt, and his wife, Amira Nyoni. The respondent is the trustee in bankruptcy of Mr Nyoni's estate. 2 The primary judge in the Federal Circuit Court ordered Mr and Mrs Nyoni to give up vacant possession of land in Kellerberrin. The land was owned by them as joint tenants until the bankruptcy of Mr Nyoni severed the joint tenancy. The primary judge also made orders authorising the trustee to sell the land. Half the proceeds after paying expenses and satisfying liabilities secured over the land is to be paid to Mrs Nyoni, who is not bankrupt. The other half is to be applied in Mr Nyoni's bankrupt estate. The Nyonis have appealed from that decision. 3 On 18 July 2019, I stayed the primary judge's orders pending the outcome of the appeal. Further background, including some preliminary consideration of the merits of the appeal, appear in my reasons for doing so: Nyoni v Beadle in her Capacity as Trustee of the Bankrupt Estate of Emson Clever Nyoni [2019] FCA 1116. 4 In those reasons I identified a possible ground of appeal with some prospects of success. At a case management hearing held after delivery of the reasons, it was clear that Mr Nyoni, at least, understood the point that had been identified and understood that the appellants would need to amend the grounds of appeal to raise it. 5 The appellants were ordered to file any amended notice of appeal by 15 August 2019 but they have not filed any amended notice of appeal at all. As a result, the case presently before the court is the one which, on the preliminary assessment of the merits of the appeal which I conducted for the purposes of the stay application, I consider to have weak prospects of success. 6 At the case management hearing on 31 July 2019 the appellants were also ordered to file an outline of written submissions 20 business days before the hearing of the appeal. They are in default of that direction. 7 Nevertheless, yesterday the appellants filed an application to adjourn today's hearing of the appeal sine die, pending the outcome of an application for judicial review they have brought in separate proceedings in this court. The application for adjournment is one of the interlocutory applications which I have mentioned. The other interlocutory application is, in effect, the balance of the application for a stay. In that application the appellants sought a number of other orders, which I was not prepared to make on 18 July 2019, and which I reserved for consideration to the hearing of the appeal. 8 There has been no appearance at today's hearing by or on behalf of either of the appellants. The respondent has applied for the dismissal of the appeal and the two interlocutory applications on the basis of default in appearance, under s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) and r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth). 9 In the current circumstances, three matters are relevant to the exercise of the discretion whether or not to dismiss the appeal and applications for default in appearance. I have already mentioned two, namely the weak prospects of success of the appeal as currently framed, and the appellants' default in taking important case management steps as directed. 10 The third relevant matter is that the court has communicated with the appellants on many occasions, in order to ensure that they were aware of the possible consequences for them if they persisted in their default and, in particular, if they did not appear at the hearing of the appeal: (1) On 31 July 2019 my chambers sent an email to the parties attaching a copy of the orders which had been made on that day, and noting the final hearing date of 31 October 2019 at 10.15 am, that is, today. (2) On 16 September 2019, in reply to a request on behalf of the respondent for a further case management hearing, my chambers responded to advise that the matter had been listed for a case management hearing on 25 September 2019 and requested the parties to confirm receipt of the email and their attendance at the case management hearing. No response was received by the appellants. They were reminded of the case management hearing a few days before 25 September 2019 but did not confirm receipt. While they sent a copy of proposed orders for the case management hearing to Chambers on 24 September 2019, they did not appear at the case management hearing. After that, Chambers emailed the parties confirming that no request for an adjournment or explanation as to why the appellants were unable to appear had been received, and reminding the parties that it is important they attend all court dates in the proceeding. The listing of the appeal for today's date was reiterated in that communication, which also said that if the appellants did not attend it would be open for the respondent to apply for an order that the appeal be dismissed. (3) Another email from my chambers on 7 October 2019 reiterated the listing date and the potential consequences of non-appearance. (4) Similar communications were made on 10 October 2019, 22 October 2019 and 25 October 2019. (5) Today the court officer called outside the court three times for the appellants, but they have not appeared. 11 Therefore the appellants have had ample notice of the need to appear today, and of the possible consequences for them if they did not. 12 That, together with the appellants' history of default in the proceedings, and the weak merits of the grounds of appeal, all support the exercise of my discretion to dismiss the appeal, due to the failure of the appellants to appear today. It follows that the two interlocutory applications I have identified should also be dismissed. 13 I confirm that the dismissal takes place under r 36.75(1)(a)(i), and note that under r 36.75(2) the appellants have a right to apply to set aside the order and to apply for an order concerning the further conduct of the appeal. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jackson.